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Issue Date: 04 March 2003
Case No. 2003-AIR-7
In the Matter of
JAISON KINSER
Complainant
v.
MESABA AVIATION, INC.
d/b/a MESABA AIRLINES
Respondent
BEFORE: RUDOLF L. JANSEN
Administrative Law Judge
ORDER GRANTING COMPLAINANT MOTION TO COMPEL COMPLETE RESPONSES TO INTERROGATORIES AND TO REQUESTS FOR PRODUCTION OF DOCUMENTS
This case is scheduled to be called for hearing on April 8, 2003 in Cincinnati, Ohio. On February 12, 2003, Karen L. Dingle, counsel for Complainant, filed a Motion to Compel Responses, Requests, and Production of Documents under authority conferred by 29 C.F.R. § 18.21. She seeks an Order compelling the Respondent to submit more complete responses to the Complainant's First Set of Interrogatories, Requests for Admission, and Request for Production of Documents. On February 21, 2003, Douglas W. Hall, counsel for Respondent, filed a responsive statement. He argues that for a variety of reasons, proper responses have been made to the discovery requests in each instance. Following the filing of the responsive statement by counsel for the Respondent, Ms. Dingle then filed a Responsive Memorandum on behalf of the Complainant and Mr. Hall then filed a statement in rebuttal. Pending Motions to Strike any of these filings are hereby DENIED.
The regulations implementing the handling of discrimination complaints under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the Twenty-first Century are found at 29 C.F.R. Part 1979.100 etseq. These regulations were essentially patterned after the whistleblower regulations of the Surface Transportation Assistance Act codified at 29 C.F.R. Part 1978 and the Energy Reorganization Act which are codified at 29 C.F.R. Part 24. They also provide that the 29 C.F.R. Part 18 procedural rules together with those offered in the applicable regulations set forth the procedures for submission, investigation, issuance of findings and litigation in these matters. Section 1979.100(b). Formal rules of evidence do not apply but rules or principles designed to assure the production of the most probative evidence available are to be applied. 1979.107(d)
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The Part 1979 regulations do not provide specific guidance as to the manner in which discovery is to be conducted or directives of the Administrative Law Judge concerning discovery problems are to be enforced. Therefore, I must refer to the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges which are codified at 29 C.F.R. Part 18 and the Federal Rules of Civil Procedure. 29 C.F.R. § 18.1' SeealsoNolder v. Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. Dec. (June 28, 1985) slip op. at 5-6).
Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ 1993-ERA-6. These principles are applicable to this Aviation Investment and Reform Act matter.
The Federal Rules of Civil Procedure (FRCP) at Rule 26(b)(2) offer additional guidance on the limitations of discovery. The rule provides limitation if the Court determines that:
(i) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
This FRCP supplements the procedural provisions of § 18.14 and offers additional guidance in resolving discovery controversies. The rule also directs an element of reasonableness to any request being made.
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While weighing all of these considerations and in considering the Complainant's Motion and the Respondent's Answers to the Motion, IT IS ORDERED that the Complainant's Motion to Compel Responses, Requests, and Production of Documents is hereby granted. The Respondent is directed to apply the legal discovery principles noted above and provide proper responses to each discovery request made by the Complainant. Complete responses will be made by April 4, 2003.
This Order is entered subject to the following directive to counsel for both the Complainant and the Respondent. I have reviewed all of the written materials relating to this discovery motion and it is obvious that much of the data sought to be discovered is of a technical nature and a complete response to all data requested will require a voluminous filing. I will apply the discovery standards noted herein and a reasonableness standard in addressing any future problems with respect to this discovery process. I expect the Complainant to make requests only as to materials which satisfy the standards indicated, and I will expect the Respondent to answer discovery requests completely, timely and in a manner which is fully consistent with the stated legal principles.
In the future, if a controversy arises as to any discovery matter, I direct the parties to confer by telephone and make every effort to resolve the matter between themselves. That is the quickest and most expedient method. I will make myself available for a telephone conference call in the event counsel believe that I can be of assistance in resolving any discovery controversy or in preparing this matter for trial.
Complainant also makes a request that the Respondent should identify all witnesses presently known or contemplated. Reference is made in Complainant's Motion to a variety of interrogatory requests and also requests for production. It is intimated in the Motion that the information requested is needed and is relevant to show the identity and knowledge of any person of whom Respondent is aware and who may have knowledge of any discoverable matter in the complaint. 29 C.F.R. § 18.14(a).
Complainant alleges that incomplete responses have been made and that the witnesses names are necessary in order to conduct complete discovery. It is noted in the Motion that the Respondent has identified several employees but Complainant requests that Respondent be ordered to state whether those employees will be witnesses and also to provide the identity of any other witness to whom Respondent has knowledge presently.
The scope of discovery regulation found at 29 C.F.R. § 18.14 indicates that the parameters of discovery include;
the identity and location of persons having knowledge of any discoverable matter.
The regulation makes no reference to "witnesses."
The Pre-hearing Order accompanying the Notice of Hearing provides the direction for the exchange of witness lists at least ten workdays prior to the scheduled hearing date. In addition, the procedural regulations at § 18.16(a)(2) indicate that a party who has responded to a request for discovery is under a duty to supplement his response to identify each person to be called as an "expert witness" at the hearing, the subject matter on which he or she is expected to testify and the substance of his or her testimony. I do not view either our procedural rules or the federal rules as compelling an exchange of witness lists this early in the proceeding and I expect the parties to fully comply with the provisions of the Pre-hearing Order. I can say that if complete discovery is not made and witnesses are offered
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at trial having significant information concerning essential facts, that absent good cause, I will treat this event as being a severe breach of the disclosure responsibilities and that breach will be dealt with harshly. I expect the parties to fully comply with the applicable regulatory provisions.
RUDOLF L. JANSEN
Administrative Law Judge
[ENDNOTES]
1Donovan v. Prestomos Presto Puerto Rico, 91 F.R.D. 222, 223 (1981).
2Seater v. Southern California Edison, ARB Case No. 96-013 Sept. 27, 1996, slip op. at 4-8